Father v Mother & Anor [2024] EWHC 3332 (Fam) (04 September 2024)
Dr Charlotte Proudman represented a mother in an international child contact case. The case involves a long-running custody and contact dispute between the parents of a child who was previously abducted from the United States by the mother in 2019. A local US court subsequently granted the father sole custody and issued a financial order against the mother. In Hague Convention proceedings, the mother successfully raised an Article 13b defence, arguing that returning the child to the United States would expose him to psychological harm. A jointly instructed psychiatrist, Dr Sales, reported that the child displayed traits consistent with Autism Spectrum Disorder (ASD). Holman J accepted the mother’s evidence that she would not return if the child was ordered back, which would be “disastrous” for the child. The judgment emphasised that separating the child from his mother would cause “profound damage” to his emotional development, particularly due to his ASD traits. The mother also admitted that she had gone underground for two years in an attempt to establish a defence under Article 12 of the Hague Convention [17-24].
Following the Hague ruling, the father did not appeal the decision or apply under the Children Act 1989 for the child’s return to the United States but instead sought contact arrangements. He applied under Article 21 of the Hague Convention to extend his current contact, requesting permission to take the child on holidays abroad, including Europe in 2025 and eventually to the United States. The mother strongly opposed this; it was argued that the same risks identified in the Hague proceedings applied and that travel to the United States would expose the child to the same emotional and psychological harm found by Holman J. She further opposed the renewal of the child’s US passport, fearing the father would abduct the child to the United States, where he held a sole custody order [1-11].
During the proceedings, Cafcass produced a safeguarding letter after interviewing both parents. The mother alleged that she had been a victim of domestic abuse by the father and his parents during their relationship and that the child had witnessed at least one incident of verbal abuse. She also expressed concerns that the father failed to acknowledge the child’s special needs and feared that he would remove the child to the United States. The father denied allegations of abuse and accused the mother of fabricating medical conditions, including ASD. The Cafcass officer noted the high level of conflict between the parents but considered the mother’s allegations to be historical and not a barrier to contact [28-36]. A later clinical psychologist assessment confirmed the child met the criteria for an ASD diagnosis and noted the mother was more observant of the child’s behaviours [61].
A US legal expert testified that the father’s 2023 petition for modification in the US court included language that could be interpreted as setting up a potential duress defence, raising concerns about his intentions regarding the enforceability of any UK court orders. The mother testified that the father’s legal actions had become increasingly aggressive, damaging her and the child’s well-being and leading to a total breakdown in trust. The court found that the mother’s fear that the father would retain the child in the United States was deeply held and that this fear needed to be considered in determining contact arrangements [99, 126, 137].
Ultimately, the court ruled that contact in the United States should not take place until at least May or summer 2028, allowing time for the father to understand the child’s ASD needs better and build trust with the mother. Contact would need to increase over time, but only gradually. As a safeguard, the court ordered that the father must post a bond of US$25,000 before any foreign travel, which would be returned upon the child’s safe return home [144, 163-174].
Related barristers: Dr Charlotte Proudman
